Baikuntha Mahant And Others vs State Of Orissa Represented By The Collector, Keonjhar And Others

DR. A.K.RATH, J

Plaintiffs’ are the appellants against the confirming judgment in a suit for declaration of title, recovery possession, if they are dispossessed from

the suit property and permanent injunction.

The case of the plaintiffs was that the suit land was reclaimed by their ancestor Allahad Mahanta in the year 1915. He was in possession of the

same. The then S.D.O., Champua by letter no.1115 permitted him to excavate a tank. Allahad Mahanta excavated a tank. He permitted the villagers

to use the water of the tank. Thereafter the plaintiffs, legal heirs of Allahad Mahanta, are in possession of the tank jointly. While matter stood thus, the

Tahasildar issued notice in Encroachment Case No.191 of 1996. On enquiry, they came to know that the suit land was recorded in the name of State.

According to the plaintiffs, they were in possession of the suit land for more than 80 years from the time of their ancestors and as such perfected title

by way of adverse possession. The recording of the land in favour of the State will not create any title. The defendants never possessed the suit land.

With the factual scenario, they instituted the suit seeking the reliefs mentioned supra.

The defendants filed a written statement pleading inter alia that the tank was excavated in the Government land. It was used by the villagers.

Allahad Mohanta was the ‘Padhan’ of the village. He was permitted to excavate the tank. The land was recorded in the name of the State in

Sabik and Hal Settlements. The plaintiffs by influencing the authorities recorded their note of possession in their favour. Since the plaintiffs

encroached upon the suit land, the Tahasildar had instituted Encroachment Case No.191 of 1996. The possession by the plaintiff is permissive in

nature. The plaintiffs have no right, title and interest over the suit land.

Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary. Learned trial judge

dismissed the suit holding that plaintiffs have no title over the suit land. Unsuccessful plaintiffs filed RFA No.19 of 2004 before the learned District

Judge, Keonjhar, which was eventually dismissed.

Heard Mr. Birendra Kumar Nayak on behalf of Mr. Basudev Pujari, learned counsel for the plaintiffs and Mr. Ram Prasad Mohapatra, learned

AGA for the State.

Mr. Nayak, learned counsel for the plaintiffs submits that Allahad Mohanta is the grandfather of the plaintiffs. He was ‘Padhan’ of the

village. He filed an application before the Sub-Divisional Officer, Champua on 11.2.1915 to excavate a tank for the purpose of pisciculture. The SDO,

Champua accorded permission to excavate a tank, vide Ext.5. He excavated the tank. He was using the water of the tank for irrigation to his adjacent

lands. He was also granted permission for renovation of the tank on 08.12.1944, vide Ext.12. He died in the year 1950 leaving behind his sons, Kailash,

Lambodhar, Trilochan and Pratap. They were in possession of the land. There was amicable partition between the co-sharers. The suit land fell to the

share of the father of the plaintiffs. The plaintiffs are in possession of the suit land. In the remark column of Hal ROR, vide Ext.B, it was stated that

Kailash Mahanta was in possession of the land, since the time of his ancestors. Initiation of Encroachment Case No.191 of 1996 against the plaintiffs

is illegal. His alternate submission is that plaintiffs are in possession of the suit land peacefully, continuously and with hostile animus to the defendants

for more than the statutory period as such perfected title by way of adverse possession.

Per contra, Mr. Mohapatra, learned AGA submits that Allahad Mohanta was the ‘Padhan’ of the village. He made an application to the

SDO, Champua for excavation of the tank over the Government land. Permission was accorded to him. Again another application was filed for

renovation of the tank. The nature of the land is communal. The villagers are using the water of the tank. The act of excavation does not confer rayati

right on the excavator. He further submits that plaintiffs have not perfected title by way of adverse possession. He places reliance in the case of

Ganesh Nayak and others Vrs. Collector, Kalahandi and another, 94 (2002) CLT 298.

On a cursory perusal of Ext.11, it is seen that Allahad Mohanta made an application to excavate the tank over patita land. The certified copy of the

order sheet passed by the SDO, Champua, in Bandha Tank Case No.9 of 1917-18, vide Ext.5 shows that Allahad Mohanta made an application to

excavate a tank between his rayati lands. Thereafter, permission was accorded. Learned trial court came to hold that there is no material on record

that tank was excavated on the rayati land of the plaintiff. Reliance placed on the remarks column of Hal ROR, vide Ext.B is wholly misplaced. ROR

neither creates any title nor extinguishes any title. Since the plaintiff was illegally occupying the Government land, Encroachment Case No.191 of 1996

was initiated by the Tahasildar, Barbil. Order of eviction was passed on 20.9.1996, vide Ext.E. The Tahasildar, Barbil held that the nature of land is

‘Jalasaya’. The villagers utilise the water of the tank for bathing and other purposes.

The alternative submission of Mr. Nayak was that the plaintiff is in possession of the suit land since the time of his ancestors peacefully,

continuously and with hostile animus to the defendants is noted to be rejected.

Adverse possession is not a pure question of law, but a blended one of fact and law. In Karnataka Board of Wakf Vrs. Govt. of India and others,

(2004) 10 SCC 779, the apex Court observed as under :-

“In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even

for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse

possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse

possession must prove that his possession is ""nec vi, nec clam, nec precario"", that is, peaceful, open and continuous. The possession must be adequate in

continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be

actual, visible, exclusive, hostile and continued over the statutory period.

The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse

possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to

the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no

equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse

possession.â€​ (emphasis laid)

The date of entry into the suit land has not been mentioned. As held above, the plaintiff has excavated a tank over the government land. The

villagers are using the water of the tank for bathing and other purposes. Both the courts have concurrently held that the plaintiffs have not perfected

title by way of adverse possession. There is no perversity in the findings of the courts below.

In Ganesh Nayak, the ancestors of the plaintiffs-gountias excavated the tank over government land. They were in possession of the tank since

1906. This Court held that act of excavation does not confer occupancy right on the excavator. They have not acquired possessory title over the land.

In view of the foregoing discussions, the appeal is dismissed, since the same does not involve any substantial questions of law. There shall be no

order as to costs.

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